Lake Macquarie City Council v Australian Native Landscapes Pty Ltd (No 2)

[2015] NSWLEC 114

Land and Environment Court

New South Wales

Medium Neutral Citation:	Lake Macquarie City Council v Australian Native Landscapes Pty Ltd (No 2) [2015] NSWLEC 114
Hearing dates:	21-22, 25-27 May 2015, 1-2, 9-12, 23-24 June 2015
Date of orders:	17 July 2015
Decision date:	17 July 2015
Jurisdiction:	Class 4
Before:	Biscoe J
Decision:	See [225]-[226]
Catchwords:	CIVIL ENFORCEMENT – whether respondent unlawfully carried out composting operation on rural land that was not authorised by or was in breach of conditions of development consents – consideration of principles of construction of development consents – construction of condition of development consents that development proceed “generally in accordance with” an approved plan – approved plans rudimentary, illustrative and diagrammatic and indicating a developed area of 100x200 metres – dams, bund and woodchip stockpile outside that area – whether conditions of development consents restricting hours of operation of “mechanical equipment” include motor vehicles – whether respondent unlawfully cleared native vegetation – whether respondent unlawfully caused adverse environmental impacts comprising emission of offensive odours, water pollution and land pollution – whether respondent negligent – relevance of applicant council’s past representations that the development complied with council’s development consent – principles relating to declaratory and injunctive relief.
Legislation Cited:	Corporations Act 2001 (Cth) ss 911A, 1041E, 1317E, 1317P Environmental Planning and Assessment Act 1979 ss 75D(2), 76A, 90, 109F, 122-127 Evidence Act 1995 s 140(2)(c) Land and Environment Court Act 1979 s 20(2) Protection of the Environment Operations Act 1997 ss 115, 116, 120, 129(1), 142A, 142C, Chapter 8, Dictionary Native Vegetation Act 2003 ss 12, 19(1), 41-45A National Parks and Wildlife Act 1974 ss 99, 118A(2), Schedule 12 Lake Macquarie Local Environmental Plan 1984
Cases Cited:	Ainsworth v Criminal Justice Commission [1992] HCA 10, 175 CLR 564 Allandale Blue Metal Pty Ltd v Roads and Maritime Services [2013] NSWCA 103, 195 LGERA 182 Ancher, Mortlock, Murray & Woolley Pty Ltd v Hooker Homes Pty Ltd [1971] 2 NSWLR 278 Attorney General for the State of NSW v Now.com.au Pty Ltd [2008] NSWSC 276 Australian Competition and Consumer Commission v 4WD Systems Pty Ltd [2003] FCA 850, 200 ALR 491 Australian Competition and Consumer Commission v Dataline.Net.Au Pty Ltd [2007] FCAFC 146, 161 FCR 513 Australian Competition and Consumer Commission v TPG Internet Pty Ltd (No 2) [2012] FCA 629, [2012] ATPR 42-402 Australian Competition and Consumer Commission v Z-Tek Computer Pty Ltd (1997) 78 FCR 197 Baulkham Hills Shire Council v Ko-veda Holiday Park Estate Ltd [2009] NSWCA 160, 167 LGERA 395 Baulkham Hills Shire Council v O’Donnell (1990) 69 LGRA 404 Blue Mountains Conservation Society Inc v Delta Electricity (No 3) [2011] NSWLEC 145, 81 NSWLR 407 Briginshaw v Bringinshaw [1938] HCA 34, 60 CLR 336 Cheers v Casey City Council [2006] VCAT 2317 Council of the City of Sydney v Mae [2009] NSWLEC 84 Currumbin Investments Pty Ltd v Body Corporate Mitchell Park Parkwood CTS [2012] QCA 9, [2012] 2 Qd R 511 Director-General, Department of Environment, Climate Change and Water v Venn [2011] NSWLEC 118 Environment Protection Authority v N (1992) 26 NSWLR 352, 76 LGRA 114 Forestry Commission of New South Wales v Corkill (1989) 73 LGRA 247 Grace Bros Pty Ltd v Willoughby Municipal Council (1980) 44 LGRA 400 Gray v Greater Bendigo City Council [2000] VCAT 1704 Great Lakes Council v Lani [2007] NSWLEC 681, 158 LGERA 1 F Hannan Pty Ltd v Electricity Commission of New South Wales [No 3] [1985] 66 LGRA 306 Hare v Brugge [2013] NSWCA 74, 84 NSWLR 41 Hill Top Residents Action Group Inc v Minister Administering the Sporting Venues Authorities Act 2008 (No 4) [2011] NSWLEC 6 House of Peace Pty Ltd v Bankstown City Council [2000] NSWCA 44, 48 NSWLR 498 In the matter of Idylic Solutions Pty Ltd – Australian Securities and Investments Commission v Hobbs [2013] NSWSC 106 Joe El-Tarraf v Franklins Ltd [2001] NSWSC 407 Katoomba Gospel Trust v Blue Mountains City Council [1994] NSWLEC 107 Lismore City Council v Ihalainen (No 2) [2014] NSWLEC 198 Marrickville Council v Tanwar Enterprises Pty Ltd [2009] NSWLEC 127 Maybury v Weston Aluminium (Producers) Pty Limited [1998] NSWLEC 17 Meriton Apartments Pty Ltd v Sydney Water Corporation [2004] NSWLEC 699, 138 LGERA 383 Oshlack v Irongates Pty Ltd (1997) 130 LGERA 189 Pace Developments v Port Phillip City Council [2012] VCAT 1277 Parramatta City Council v Shell Co of Australia Ltd [1972] 2 NSWLR 632 Re Ici Australia Operations Pty Limited v Trade Practices Commission [1992] FCA 474, (1992) 38 FCR 248 Ryde Municipal Council v Royal Ryde Homes [1970] 1 NSWR 277, 19 LGRA 321 Sankey v Whitlam [1978] HCA 43, 142 CLR 1 Sydney Serviced Apartments Pty Ltd v North Sydney Municipal Council (No 2) (1993) 78 LGERA 404 Tempe Recreation (D.500215 and D.1000502) Reserve Trust v Sydney Water Corporation [2014] NSWCA 437 Warehouse Group (Australia) Pty Ltd v Woolworths Ltd [2003] NSWCA 270, 137 LGERA 115 Westfield Management Limited v Perpetual Trustee Company Limited [2006] NSWCA 245 Wingecarribee Council v CSR Limited [1993] NSWLEC 184 Winn v Director-General of National Parks and Wildlife [2001] NSWCA 17, 130 LGERA 508 X v Australian Prudential Regulation Authority [2007] HCA 4, 226 CLR 630
Texts Cited:	Australian and New Zealand Environmental Conservation Council, Australian and New Zealand Guidelines for Fresh and Marine Water Quality (October 2000) Department of Environment and Conservation, Composting and Related Organics Processing Facilities Guidelines (July 2004) P W Young QC, Declaratory Orders (Butterworths, 2nd ed, 1984) Soil Conservation Commission of New South Wales, Soils Their Properties and Management, A Soil Conservation Handbook for New South Wales (Sydney University Press, 1st ed, 1994)
Category:	Principal judgment
Parties:	Lake Macquarie City Council (Applicant) Australian Native Landscapes Pty Ltd (Respondent)
Representation:	COUNSEL: P Larkin SC and T To (Applicant) J Robson SC and H El-Hage (Respondent)   SOLICITORS: Long Legal (Applicant) TressCox (Respondent)
File Number(s):	40453/14

Judgment

TABLE OF CONTENTS

INTRODUCTION   1-6

BACKGROUND FACTS   7-33

PLANNING CLAIM: THREE DAMS, BUND, WOODCHIP STOCKPILE   34-76

Planning experts’ evidence   37-38

Principles of construction of development consents   39-48

Consideration   49-76

PLANNING CLAIM: HOURS OF OPERATION OF MECHANICAL EQUIPMENT   77-83

NATIVE VEGETATION CLAIM   84-92

OFFENSIVE ODOUR CLAIM   93-113

WATER POLLUTION/NEGLIGENCE CLAIMS   114-189

Water pollution: s 120 POEO Act   116-180

Two past breaches of s 120 (direct evidence)   120-126

Further past and apprehended future breaches of s 120   127-129

Topography   130

38 occasions of rainfall over 300 millimetres in 90 years   131-132

Water quality sampling   133-146

Soil quality sampling   147-157

Leachate dam storage capacity, surcharge capacity   158-170

1-4 March 2013   171-174

25-28 February 2014   175-178

Conclusion   179-180

Negligence: s 116 POEO Act   181-189

LAND POLLUTION/NEGLIGENCE CLAIMS   190-200

RELIEF   201-221

Declarations   201-218

Injunctions   219-221

Conclusion   222-224

ORDERS   225-226

ANNEXURES

INTRODUCTION

1. This case concerns the lawfulness of a rural composting industry conducted by the respondent at Cooranbong. Since May 2000 the respondent, Australian Native Landscapes Pty Ltd (ANL), has carried on a large composting operation on rural land Lot 84 DP 9632 at 60 Crawford Road, Cooranbong (the Land). In March 2015 ANL purchased the Land, which it had previously leased. The Land has an area of about 16.55 hectares. The composting operation is conducted on a cleared area of about 5.63 hectares in roughly the middle of the Land. The Land is heavily wooded around its periphery. The Land is a corner lot with frontages on the south and east to Crawford Road and on the west to Deaves Road. On the north it is bound by rural land (Lot 83 DP 9632). On the other side of Crawford Road and Deaves Road are rural land and some isolated rural residential dwellings. Approximately 100 metres north-east of the Land is a suburban residential development.

2. This is a civil enforcement proceeding in Class 4 of the Court’s jurisdiction. The applicant is Lake Macquarie City Council. Council’s claims, as crystallised at trial, are that ANL has carried out development on the Land unlawfully, as follows:

1. In breach of s 76A of the Environmental Planning and Assessment Act 1979 (EPA Act), ANL’s works on and use of the Land were not authorised by, or were in breach of a condition of, development consents granted by Council in 1986 for “Rural Industry (Potting Mix)” (1986 Consent) and in 1988 for “Additions to Rural Industry Potting Mix” (1988 Consent) in five respects:

1. carrying out earthworks for and constructing the 6 metres high bund coloured pink on annexure “A” hereto. It can be seen that the bund surrounds the developed operating area except for the south-eastern sector near Crawford Road. Its function is to prevent leachate (a term used to describe water draining from a compost site) from escaping and to divert it to a leachate dam;

2. carrying out earthworks for and constructing the leachate dam coloured blue (marked “Dam D1”) on annexure “B” hereto;

3. using the other two dams coloured blue on annexure “B” hereto (the clean water dam and the Crawford Road dam, the former being marked “Dam C1” and the latter being the smaller one close to Crawford Road). Evidence tendered by ANL at trial establishes that they existed at the time of the 1986 Consent;

4. using the area coloured green on annexure “C” hereto for the purposes of composting. This area generally corresponds with, and it is convenient to refer to it as, the woodchip stockpile area; and

5. operating mechanical equipment, including trucks, on the Land at times other than those permitted by condition 5 of the 1988 Consent or, alternatively, condition 6 of the 1986 Consent.

2. In breach of s 12 of the Native Vegetation Act 2003 (NV Act), between 2006 and 2014 ANL cleared native vegetation on the Land in three polygon shaped areas of 0.031 hectares, 0.027 hectares and 0.120 hectares marked on the aerial photograph annexure “D” hereto. The latter two locations were cleared for the woodchip stockpile area.

3. In breach of the Protection of the Environment Operations Act 1997 (POEO Act), ANL used the Land in such a way as to cause adverse environmental impacts comprising water pollution/negligence (ss 120, 116), land pollution/negligence (ss 142A, 115) and emission of offensive odours (s 129).

3. Council claims declarations and injunctions, generally to be stayed for a period of six months:

1. pursuant to s 123 of the EPA Act and s 20(2) of the Land and Environment Court Act 1979 (LEC Act), in relation to the EPA Act claims

1. restraining use of the bund, three dams and woodchip stockpile area unless and until development consent has been obtained and is in force to permit such use;

2. restraining use of mechanical equipment including trucks, on the Land other than in accordance with condition 5 of the 1988 Consent (or alternatively condition 6 of the 1986 Consent);

2. pursuant to s 252 of the POEO Act and s 20(2) of the LEC Act, in relation to the POEO Act claims, restraining water pollution, land pollution and emission of offensive odours unless and until authorised by environment protection licence.

4. Council also seeks liberty to apply for remediation orders pursuant to s 124 of the EPA Act, s 41 of the NV Act and s 252 of the POEO Act.

5. ANL generally disputes the allegations and alternatively submits that the Court should, in the exercise of its discretion, decline to grant any relief.

6. This is a case in which pictures are worth a thousand words. Accordingly, annexed to this judgment and marked as follows are copies of the following further aerial photographs and plans:

“E”   An aerial photograph of the Land on which are depicted the site activity zones of ANL’s composting operation.

“F”   The layout plan approved in the 1986 Consent. A condition required that development proceed “generally in accordance with” this plan.

“G”   The layout plan approved in the 1988 Consent. A condition required that development proceed “generally in accordance with” this plan.

“H”   The “Works Plan” annexed to the Summons, being an overlay survey depicting in black the spatial extent and general layout of the existing works and in red the 100x200 metres development footprint depicted in the approved layout plans in the 1986 and 1988 Consents.

“I”   An aerial photograph showing soil sampling locations (relevant to the water pollution claim).

“J”   An aerial photograph showing water quality sampling locations and most of the drainage lines (relevant to the water pollution claim).

BACKGROUND FACTS

7. In 1983 the Land was covered in native bush. At some time prior to May 1986, and probably by June 1985, it had been partly cleared for a potting mix operation.

8. On 24 June 1985 Mr and Mrs Renshaw, the owners of the Land, applied to Council for a building permit to erect a farm shed, to be used as a “packing shed (potting mix)” (the eastern shed). A Council inspection of the Land on 1 July 1985 stated that the “Site has been excavated to [natural ground level] on building platform. Owner intends bagging potting mix on site. Land is otherwise vacant, no house on site”. On 16 July 1985 Council granted the building permit application. The eastern shed was subsequently constructed.

9. On 8 October 1985 Mr Renshaw made an application to Council to install a septic tank in the “farm shed”, that is, the eastern shed. The application nominated the source of water supply for the septic tank as a “dam”. The application was endorsed with approval from the Department of Health NSW on 21 March 1986.

10. By May 1986, as Council knew from aerial photographs received by its Town Clerk early in that month (discussed below), there was a clearing roughly 200 metres long and 100 metres wide or a little more approximately in the middle of the Land, with an access road to Crawford Road, on which the Renshaws were conducting a potting mix operation under the name “Organic Potting Mix”; and, outside the clearing, were the clean water dam and the Crawford Road dam.

11. In May 1986 Mr Renshaw lodged a development application with Council for a rural industry in which the current operation was described as “the preparation, bagging and distribution of organic potting mixes on a wholesale basis”. Details of the existing works and operation were provided.

12. Development consent was required for that use under the Lake Macquarie Local Environmental Plan 1984.

13. On 16 June 1986 Council granted the 1986 Consent, DA86/0145, for “Rural Industry (Potting Mix)” on the Land. Condition 3 provides for development proceeding generally in accordance with a certain layout plan (annexure “F” to this judgment). This rudimentary plan shows potting mix works within a roughly rectangular 200x100 metres footprint parallel with Crawford Road, an access road at right angles to Crawford Road, and a 100 metre setback from Crawford Road. In fact, at that time the cleared area on which the potting mix works were located was roughly 200x100 metres or a little more but it and the access road were orientated differently in relation to Crawford Road than the depiction in the approved plan. Condition 6 specified that the hours of operation of mechanical equipment were limited to between 7am and 8pm on any day.

14. The existing Crawford Road dam was depicted in a Council officer's file note dated 18 November 1986.

15. In October 1987 Mr Renshaw made a building application for a house on the Land. A Council officer’s note made on 5 November 1987 said “permit not to be issued prior to dev consent app advised”.

16. On the same day Mr Renshaw made an application to install a septic tank. This application was endorsed with approval by the Department of Health NSW on 6 November 1987.

17. In November 1987 Mr Renshaw made a development application for a “new residence” on the Land. Council granted this application on 26 November 1987. A condition of this consent required an application to be made for a septic tank prior to approval of any building permit.

18. In December 1987 Council granted a building permit for the new residence. However, it was never built.

19. On 5 July 1988 Council, on Mr and Mrs Renshaw’s June 1988 application, granted the 1988 Consent, DA No 88/0269, for “Additions to Rural Industry Potting Mix”. Condition 3 provides: “Development proceeding generally in accordance with” a certain layout plan (annexure “G” to this judgment). This rudimentary plan shows additional features to those shown on the 1986 Consent plan, including a second shed (the western shed), additional parking next to the access road, setback distance from Deaves Road, and references to the surrounding area on the Land “as natural bush”. Condition 5 makes a change to the hours of operation of mechanical equipment specified in the 1986 Consent – namely an 8am start time on weekends rather than 7am.

20. Mr Renshaw continued to operate the potting mix business within a cleared area on the Land until October 2000. The size of the cleared area increased significantly over the period 1986 to October 2000:

1. 5.5 hectares was cleared between 1984 and 1991;

2. 0.71 hectares was cleared between 1991 and 1994; and

3. at least 3.42 hectares was cleared in four areas between 1994 and April 2000.

21. The Renshaw potting mix business was conducted without any leachate dam, bund or other environmental management works.

22. Prior to ANL commencing operations on the Land in May 2000, the Renshaw business was producing about one million bags of potting mix per annum.

23. Pursuant to an arrangement with the Renshaws, ANL carried out composting on the Land on a trial basis between May 2000 and October 2000.

24. In the period May to October 2000, ANL constructed a third dam to collect leachate from the composting works and bund to prevent the flow of leachate from the composting works into other parts of the Land. These works were carried out to bring the Land and the composting activities into what was described (vaguely) in evidence as compliance with relevant standards. Water from the leachate dam has been used to add moisture to the composting windrows and to fill a water cart (15,000 litres) which typically sprays water on the operational areas six times per day for dust suppression.

25. In October 2000, ANL entered into a lease of most of the Land with Mr and Mrs Renshaw. Since that time, ANL has carried out its composting activities largely within the cleared area established by the Renshaws. The main exception is the woodchip stockpile area created by ANL some time after February 2006 on the right hand side of the access road from Crawford Road.

26. ANL continued to lease most of the Land until it purchased the Land from Australasian Conference Association Ltd in March 2015 (the Association had acquired the Land from the Renshaws).

27. When ANL took over the composting business from the Renshaws, it:

1. obtained a survey of the works on the Land;

2. planted over 1,000 Australian native plants on the Land;

3. was in negotiations with the Environmental Protection Authority (EPA) for the grant of an environment protection licence.

28. In turn, the EPA engaged with Council in relation to the activities on the Land. Council extensively investigated the activities on the Land. This involved on-site inspections and off-site surveillance, including a full site inspection on 5 March 2001. Subsequently, Council sent a letter to the EPA dated 13 March 2001, which the EPA provided to ANL. The letter included the following:

Council advises that due to complaints received in recent months alleging that odours and dust were causing concerns for nearby residents the matter has been extensively investigated by both on-site inspections and off-site surveillance. A full site inspection was conducted on March 5, 2001…

The overall result of the site inspection revealed that Australian Native Landscape is currently operating within the approved consent DA/86/00145 dated 16 June 1986. However, Council advises that the proposal to increase the existing operation to receive between 5,000 and 50,000 tonnes of waste per annum is considered to be Designated Development under the provisions of the EP&A Act and as such requires development consent.

…

ANL management has been advised of the problems being caused and requested to address those matters accordantly taking into account the effects on neighbouring properties. Council has been assured that ANL will comply with the consent as approved to ensure compliance.

Furthermore ANL have recently implemented an Environmental Management Plan to ensure that all approvals, reports or license conditions are fully implemented and complied with.

29. Council abandoned its statement that designated development approval was required in a further letter from a Council planner to the EPA dated 2 April 2001, which included the following:

Please be advised that I have had a meeting with Mr David Newell in regard to the above property. Council’s Development Compliance Officer Mr Ian Fletcher has also carried out a number of inspections of the subject site/

Please be advised that the Council is happy with the activities being carried out on the site and those proposed are consistent with the existing development consent number 86/0145. No tonnage requirements are listed in this consent however the staffing number, hours of operation and trucking numbers are all consistent with the consent.

In this regard no further consent is required at this stage. It is recognised however that if this were a new proposal the activity would be classed as a designated development.

30. Council’s position based on inspections, investigations and meetings was put beyond doubt in a memorandum dated 5 July 2001 to all Councillors prepared by Council's then Development Compliance Officer Mr Ian Fletcher, which stated:

A check of Council’s records indicates that the subject property is zoned Rural 1(a) and the use as a Rural Industry is permissible with Council consent. Consent to operate as a Rural Industry “potting mix” was granted by Council via DA/86/00145 Dated 16 June 1986. Council has also granted approvals for a dwelling house and workshop.

…

There has been a change of ownership and the property is now under the management of the Australian Native Landscapes. The consent remains active and no further approvals are required for the change of ownership in this regard as the use of the property as a “potting mix” has already been approved. However, the new owner/operator is required to act in accordance with the approved consent as issued.

…

Furthermore, Australian Native Landscapes have recently implemented an Environmental Management Plan to ensure that all approvals, reports of license conditions are fully implemented and complied with. Australian Native Landscapes management has been advised of the problems being alleged and requested to address those matters accordingly taking into account the effects on neighbouring properties. Council has been assured that Australian Native Landscapes will comply with the consent as approved to ensure compliance.

…

The overall outcome of the investigations into the alleged non-compliance with consent conditions have revealed that the activities being carried out on the site and those proposed are consistent with the existing development consent. Whilst no tonnage requirements are listed in the existing development consent the staffing number, hours of operation and trucking movements are all consistent with the consent. In this regard no further consent is required at this stage.

31. In July 2001, the EPA granted environmental protection licence No 11324 to ANL. In granting the licence, the EPA took into account Council's confirmation that the existing development consent authorised the works being carried out on the Land. The licence authorises the carrying out of composting activities on the Land, as well as waste storage. As regards water pollution, the licence requires the licensee to comply with s 120 of the POEO Act. The licence prohibits waste on the Land with certain exceptions.

32. Since May 2000, ANL has operated a composting and potting mix facility on the Land. The composting operation involves the import in trucks of green recyclable material (such as mowed grass and tree branches) sourced from local councils’ waste management facilities. The green material is deposited at one end of composting windrows of similar, green material that is in the process of breaking down to compost, and is irrigated with leachate from the leachate dam. As the material starts to weather, it is gradually churned and moved along the windrows until it is fully decomposed and weathered. The windrows are approximately 80 metres long, 20 metres wide and 6 metres high. The weathered but unprocessed material is then moved to a machine located to the north east of one of the two sheds on Land. This machine sifts the compost into different grades according to market demand. In turn, it is mixed with other material (such as sand or woodchip). This mixed compost is then either transported away from the Land in bulk, or it is bagged in the adjoining eastern shed. The finished product, whether in bulk or bagged, is transported away from the Land in trucks. There are generally 15 to 20 trucks per day involved in unloading and loading products on the Land.

33. Between 2006 and 2014, ANL totally cleared native vegetation from three areas adjacent to the Land’s access road, respectively comprising 0.031 hectares, 0.120 hectares and 0.027 hectares, as depicted on annexure “D” hereto. The latter two areas are to the right of the access road as one enters the Land and are substantially used for the stockpiling of woodchips of various kinds.

PLANNING CLAIM: THREE DAMS, BUND, WOODCHIP STOCKPILE

34. It is convenient to repeat Council’s planning claim that, in breach of s 76A of the EPA Act, ANL has carried out on the Land the following development that is not authorised by the 1986 and 1988 Consents:

1. carrying out earthworks for and constructing the bund coloured pink on annexure “A” hereto, outside a two hectares or thereabouts area approved under the 1986 and 1988 Consents;

2. carrying out earthworks for and constructing a leachate dam (marked “Dam D1”) coloured blue on annexure “B” hereto;

3. using the other two dams coloured blue on annexure “B” hereto, being the clean water dam and the Crawford Road dam. Evidence tendered by ANL at trial establishes that they existed at the time of the 1986 Consent;

4. using the woodchip stockpile area coloured green on annexure “C” hereto.

35. Section 76A of the EPA Act provides:

76A Development that needs consent

(1) General

If an environmental planning instrument provides that specified development may not be carried out except with development consent, a person must not carry the development out on land to which the provision applies unless:

(a)   such a consent has been obtained and is in force, and

(b)   the development is carried out in accordance with the consent and the instrument.

…

36. An environmental planning instrument, the Lake Macquarie Local Environmental Plan 1984, required development consent for the three dams, the bund and the woodchip stockpile area.

Planning experts’ evidence

37. Expert planning evidence was given by Mr David Lovell, a Council officer, for Council and Ms Deborah Laidlaw for ANL. They sought to compare the actual development on the Land with their understanding of what was permitted under the 1986 and 1988 Consents. I am bound to form and act on my own independent opinion in relation to that comparison. In some respects their evidence went beyond the limits of admissible expert evidence, in which case I treat it as submissary. It is unnecessary to attempt to disentangle their evidence in order to segregate it as either evidentiary or submissary. In either case, including in the argumentative process between the experts and counsel, it generally assisted me to obtain a fuller understanding and appreciation of the comparison than I may otherwise have had.

38. The use that can properly be made of such expert evidence is illuminated by the discussion in the analogous leading case of Ancher, Mortlock, Murray & Woolley Pty Ltd v Hooker Homes Pty Ltd [1971] 2 NSWLR 278. There the plaintiff alleged infringement of copyright of architects’ plans for project houses by copying of plans and erection of houses in accordance with such plans. Street J took into account extensive evidence of expert witnesses as to the alleged points of similarity and dissimilarity in the various plans and houses. His Honour said at 286:

In view of the volume of expert evidence, and the differing views expressed by the expert witnesses, I should state the use that can properly be made of that evidence in reaching a decision in a suit such as this. The decision upon the issue of similarity is an original decision for the court itself. It is to be reached upon an assessment of such similarities and dissimilarities as appear to the court between the plans or buildings under consideration. The fact that one particular expert of the highest authority and of unimpeachable credit is permitted to swear to an opinion on similarity or dissimilarity does not relieve the court of the responsibility of forming its own opinion on this issue. In this sense the expert evidence in a suit such as the present fills a somewhat unusual role. It is almost as if each side calls an expert to argue out with counsel in examination-in-chief and cross-examination the similarity or dissimilarity which that particular expert sees between the plans and houses. By attending to the progress of this argumentative process between counsel and expert the court is enabled to perceive and more readily to appreciate the points of similarity and dis­similarity. In this way the tendering of expert evidence is of value in exposing the facets of the ultimate question to which the expert opinion evidence is directed. But the important point is that, in distinction from the judicial process in relation to expert evidence such as is normally encountered in litigation, a court in the present type of litigation is entitled, and, indeed, bound, to form and act on its own original opinion.

The experts in the present case were indeed impressive both in point of stature within their profession as well as in the content of their evidence and the manner in which they gave it. I have been greatly assisted in understanding and appreciating the points of similarity and dissimilarity by the entirety of their evidence. Plans, photographs and other objective details have been pulled apart, evaluated, and criticized time and time again during the course of the hearing. This has served to enable me to form an opinion in the light of what I believe to be a much fuller understanding of the process of comparison of plans and houses—and, in particular, these plans and houses—than I had at the early stages of the hearing.

Principles of construction of development consents

39. “The nature and extent of the approved development must be determined by construing the document of approval, including any plans or other documents which it incorporates, aided only by that evidence admissible in relation to construction which establishes, or helps to establish, the true meaning of the document as the unilateral act of the relevant authority, not the result of a bilateral transaction between the applicant and the council. Thus evidence of the nature of the site would always be admissible for this purpose, as would be, in appropriate cases, evidence as to the meaning of the marks on plans, or indeed, the meaning of the absence of particular marks”: Parramatta City Council v Shell Co of Australia Ltd [1972] 2 NSWLR 632 at 637 (Hope JA).

40. A development consent is to be construed according to its terms, having regard to its enduring nature. A development consent has an enduring nature because it is not personal to the applicant but is a public document operating in rem for the benefit of third parties such as subsequent owners, occupiers and security holders, and in some respects is equivalent to a document of title: House of Peace Pty Ltd v Bankstown City Council [2000] NSWCA 44, 48 NSWLR 498 at [23]; Winn v Director-General of National Parks and Wildlife [2001] NSWCA 17, 130 LGERA 508 at [4]: Ryde Municipal Council v Royal Ryde Homes [1970] 1 NSWR 277 19 LGRA 321 at 324 (Else-Mitchell J). The enduring nature of a development consent encourages a fair but liberal reading of the rights it confers upon a landowner who may spend considerable money acting upon it who and is likely to wish to sell the land sooner or later: House of Peace at [41].

41. A development consent is to be construed not as a document drafted with legal expertise, but to achieve practical results: Westfield Management Limited v Perpetual Trustee Company Limited [2006] NSWCA 245 at [36]; Baulkham Hills Shire Council v Ko-veda Holiday Park Estate Ltd [2009] NSWCA 160, 167 LGERA 395 at [96]-[99] and [105].

42. Any lack of clarity or certainty in a council development consent is the responsibility of the council and it must take the consequences: Royal Ryde Homes at 324.

43. As a development consent is a document in rem, communications between the parties do not form part of the matrix relevant to construction: Westfield Management at [41].

44. As a general rule, a development consent, being a public document operating in rem for the benefit of third parties, should be construed without reference to extrinsic evidence other than to identify a thing or place referred to in it. That extrinsic evidence is not led to vary the consent but to identify a thing or place referred to in it. Evidence as to the nature or physical features of the land may also be admissible for that purpose, at least those features observable by a third party at the time of the consent: Allandale Blue Metal Pty Ltd v Roads and Maritime Services [2013] NSWCA 103, 195 LGERA 182 at [44]; Shell Co of Australia at 637.

45. A similar, or the same, principle applies when construing a registered easement: Sydney Serviced Apartments Pty Ltd v North Sydney Municipal Council (No 2) (1993) 78 LGERA 404 at 407-408; Tempe Recreation (D.500215 and D.1000502) Reserve Trust v Sydney Water Corporation [2014] NSWCA 437 at [77]; Westfield Management at [41]; Hare v Brugge [2013] NSWCA 74, 84 NSWLR 41 at [15]-[18]. In the registered easement context, it has been said that different considerations may apply if some material change in physical circumstances has occurred since the creation of the easement because the scope for consideration of extrinsic evidence may be reduced over time from the point of view of a third party inspecting the register: Hare at [18], Currumbin Investments Pty Ltd v Body Corporate Mitchell Park Parkwood CTS [2012] QCA 9, [2012] 2 Qd R 511 at [49].

46. Plans and other documents may be incorporated in a development consent expressly or by necessary implication: Allandale at [24], [43]-[48], [153]-[163]. A document attached to a development consent or referred to in it for the purpose of identifying or describing something dealt with in the consent, will for that reason be expressly incorporated in the consent: Allandale at [45]. The mere approval of a development application does not necessarily have the effect of incorporating everything stated in the application, such as assertions of intention: Royal Ryde Homes. In that case, a development application for a laundry stated the proposed working hours but the record of the development consent did not refer to working hours. Else-Mitchell J held that the consent did not include any limitation of working hours. For an analysis of the incorporation principles and how they have played out in the cases, see Lismore City Council v Ihalainen (No 2) [2014] NSWLEC 198 at [93]-[114] (Biscoe J).

47. The ordinary rules of construction and principles of interpretation apply to a development consent as with any other statutory instrument: Ko-veda at [97]-[99]. Like all legal documents, a development consent must be read as a whole. The effect of doing so may be to depart from the material and ordinary meaning of the words of one provision, where it is necessary to do so to avoid absurdity or inconsistency with the rest of the instrument: Tempe Recreation at [53]-[54].

48. A development consent that requires development to proceed “generally in accordance with” approved plans, allows for some latitude and deviation from the approved plans of a relatively minor nature: Oshlack v Irongates Pty Ltd (1997) 130 LGERA 189 at 196-197 per Stein J; Wingecarribee Council v CSR Limited [1993] NSWLEC 184 per Stein J; Katoomba Gospel Trust v Blue Mountains City Council [1994] NSWLEC 107 per Talbot J; Grace Bros Pty Ltd v Willoughby Municipal Council (1980) 44 LGRA 400 at 406 per Wootten J (SC/NSW); Maybury v Weston Aluminium (Producers) Pty Limited [1998] NSWLEC 17 per Talbot J. However, the question whether development is “generally in accordance” with approved plans is one of fact and degree in the context of the overall development: Oshlack at 196; Wingecarribee.

Consideration

49. On 16 June 1986 Council granted the 1986 Consent for “Rural Industry (Potting Mix)”. Conditions 3 to 6 of the 1986 Consent provide:

3.   Development proceeding generally in accordance with the layout plans submitted except as amended by the conditions of this consent.

Section 90(1)(e)

Environmental Planning & Assessment Act

4   The applicant be required to comply with noise levels as described in Australian Standard 1055, Part 2 – 1984 – appendix B – Noise Area Category R2 at the nearest residential boundary both during construction and upon use of the premises.

Section 90(1)(b)

Environmental Planning & Assessment Act

5   Garbage and refuse to be stored in a property constructed weatherproof storage area and disposed of to the satisfaction of the City Health Surveyor and the City Engineer.

Section 90(1)(b)

Environmental Planning & Assessment Act

6.   That the hours of operation of mechanical equipment be limited to between 7.00am and 8.00pm on any day.

Section 90(1)(o)

Environmental Planning & Assessment Act

50. The “layout plans” referred to in condition 3 in fact comprise only a single rudimentary layout plan, a copy of which is annexed to this judgment and marked “F”. This plan specifies a development footprint of 100x200 metres depicted by a roughly rectilinear bubble parallel to Crawford Road; within the bubble raw material and potting mix stockpiles, a mixer, the eastern shed and parking for 5 cars adjacent to the eastern shed a 100 metres setback from Crawford Road; and an access road at right angles to Crawford Road.

51. As Council knew when it granted the 1986 Consent, a potting mix operation was already being carried on at the Land in a clearing and with an access road which were both oriented very differently from what was shown in the 1986 Consent approved plan.

52. On 16 July 1988 Council granted the 1988 Consent for “Additions to Rural Industry (Potting Mix)”. Conditions 3, 4 and 5 of the 1988 Consent provide:

3.   Development proceeding generally in accordance with the layout plans submitted except as amended by the conditions of this consent.

Section 90(1)(e)

Environmental Planning & Assessment Act

4.   The applicant be required to comply with noise levels as described in Australian Standard 1055, Part 2 – 1984 – Appendix B – Noise Area Category R2” at the nearest residential boundary both during construction and upon use of the premises

Section 90(1)(b)

Environmental Planning & Assessment Act

5.   Hours of operation of mechanical equipment are to be restricted to between 7.00am and 8.00pm on weekdays and 8.00am to 8.00pm weekends.

53. The “layout plans” referred to in condition 3 of the 1988 Consent in fact comprise only a single rudimentary layout plan, a copy of which is annexed to this judgment and marked “G”. In addition to showing the elements appearing in the 1986 plan, this plan shows the proposed western shed, proposed “additional parking” on the left hand side of the access road from Crawford Road, a 100 metres setback from Deaves Road of the 200x100 metres development footprint, a house just outside the southern boundary of that area (the house was never built), “natural bush” surrounding the development footprint, and the boundary of the Site. Under condition 5, the weekend hours of operation were reduced by one hour, for they started at 8.00am whereas under condition 6 of the 1986 Consent they started at 7.00am.

53. Condition 3 of each of the 1986 and 1988 Consents was imposed to restrict location, siting, scale, shape and size. That is evident from the reference (immediately following condition 3) to s 90(1)(e) of the EPA Act. In 1986 and 1988, s 90(3)(a) of the EPA Act authorised the imposition of a condition if it related to “any matter referred to in s 90(1) of relevance to the development the subject of the consent”. Section 90(1)(e) was in the following terms: “the character, location, siting, bulk, scale, shape, size, height, density, design or external appearance of that development”.

54. As discussed earlier, the phrase “generally in accordance with” in condition 3 of the 1986 and 1988 Consents of itself permits relatively minor deviations from the specified 100x200 metres development footprint and the setbacks shown on those plans. This is before taking into account the context, in particular the nature of the approved plans and the nature and physical features of the Land at the time. The plans are not to scale and are illustrative, diagrammatic and rudimentary compared with modern development consent approved plans. The plans illustrate and were intended to approve the existing clearing and existing works thereon as well as the existing access road. The actual orientation of the existing clearing and access road (as Council knew at the time) was very different from that shown on the plans. Therefore, although the specified spatial area is 100x200 metres, some expansion of that area and flexibility as to its shape and location are permissible under the 1986 and 1988 Consents. It is a matter of degree, but I disagree with Ms Laidlaw’s suggestion that this can be translated to the extent of the red bounded oval diagram in her pre-trial expert report, which has dimensions of approximately 260x162 metres and is a very different shape. That diagram did not include the clean water dam and the Crawford Road dam.

55. Taking those matters into account, in my opinion the 1986 Consent should be construed as including consent to the existing potting mix works illustrated on the approved plans within a roughly rectangular area approximately in the order of 100x200 metres, representing substantially the then existing cleared area, but in its actual orientation, and to any such future works within that area, connected by an access road to Crawford Road.

56. The contentious issues are whether the 1986 and 1988 Consents also authorised the clean water dam and the Crawford Road dam created prior to ANL’s occupation of the Land, as well as the leachate dam, bund and woodchip stockpile area created by ANL, all of which are outside any reasonable interpretation of the express spatial limitations in the 1986 and 1988 Consent approved plans.

57. Council submits that the 1986 and 1988 Consents do not apply to the clean water dam and the Crawford Road dam because they are not referred to in either Consent, including in their approved layout plans, and lie outside the approved spatial area illustrated in those plans. Council emphasises the general principle that in construing a development consent reference can be had to the physical features of the developed area at the time of the consent but only to identify a thing or land referred to in the consent and not to vary the consent: Allandale at [44].

58. If the clean water dam and the Crawford Road dam had not existed at the time of the 1986 Consent, it would be impossible to construe the 1986 Consent as approving them, given that they are not specifically mentioned in the Consent or shown in its approved plan.

59. Before trial, the parties’ expert planners agreed in their joint report that the three dams, the bund and the woodchip stockpile area required, and are not covered by, a development consent.

60. However, during the planners’ concurrent oral evidence at trial, there was a revelation, for it came to light that the clean water dam and the Crawford Road dam existed at the time of the 1986 Consent and that Council knew this. The evidence comprises a letter from solicitors for a third party and enclosed aerial photographs of the Land, addressed to Council’s Town Clerk and received on 7 May 1986. The photographs show the clearing with potting mix works on it, the access road from Crawford Road, the clean water dam and the Crawford Road dam. It was Council’s Town Clerk who shortly afterwards, in June 1986, signed the notice of the 1986 Consent.

61. The letter and enclosed aerial photographs were not included in the five volume Evidence Book prepared by the parties and tendered at the beginning of the trial, which included aerial photographs of the Land taken in 1983, 1987 and later years. A copy appears to have been unearthed by ANL from Council files during the trial and only emerged in evidence during the concurrent oral evidence of the planning experts when senior counsel for ANL cross-examined Mr Lovell on the copy and tendered it. Mr Lovell conceded in cross-examination that he had previously seen the letter and a coloured version of the attached photographs and could not say why he did not bring them to the attention of the Court. He appeared to indicate that they were not present to his mind when he prepared his written evidence. Ms Laidlaw later said she was unaware of them or that the two dams existed until they were tendered as aforesaid.

62. The aerial photographs of the Land received by Council in May 1986 show virtually the same things as a 1987 aerial photograph in evidence. As calculated during closing oral submissions, they show that the clearing was then about 100x200 metres or a little more in a roughly rectangular but slightly oval shape, and that the clearing and the access road are oriented very differently from that depicted on the 1986 and 1988 Consent approved plans.

63. The clean water dam and the Crawford Road dam are used for drainage/sediment control purposes and present in a similar manner to farm dams commonly seen around the surrounding rural landscape. As Ms Laidlaw suggested, the only logical explanation for the existence of the two dams at the time of the 1986 Consent was that they were associated with the then existing composting operation. By comparing aerial photographs in evidence, it is apparent that the two dams and the potting mix operation works on the Land all came into existence some time between September 1983 and May 1986. I conclude that at the time of the 1986 and 1988 Consents, the two dams were incidental or ancillary to the existing potting mix operation on the Land. It is true, as Council points out, that a dam was mentioned as a source of water supply in the October 1985 application for a septic tank (see [9] above), but it is unrealistic to view a dam of the size of either of these subject dams as being constructed solely for that purpose. In any case it does not matter if it was, because that application indicated that the septic tank was for the eastern shed, which was part of the existing potting mix operation at the time of the 1986 and 1988 Consents.

64. When construing the 1986 Consent, it is permissible to take into account the physical circumstances of the Land at that time. As Council then knew, the physical circumstances included the existing potting mix operation including the core works illustrated on the approved plan, and the two dams.

65. In circumstances where the two dams existed to Council’s knowledge outside the clearing at the time of the 1986 Consent, Mr Lovell agreed in cross-examination that it was reasonably open to conclude that the 1986 and 1988 Consent approved plans were only seeking to capture the core operations. In cross-examination, Ms Laidlaw considered that the 1986 Consent approved layout plan showed only the core composting area and that now it was established the two dams existed at that time, they could be regarded as “generally in accordance” with the approved plans. I agree with both experts in those respects.

66. At the time of the 1986 Consent, the existing core operations comprised everything (including the clearing and the access road) except the two dams. The existing core operation works are illustrated on the 1986 and 1988 Consents rudimentary approved plans. However, the actual orientation/location of the core works was very different from that shown on the approved plans.

67. In my opinion, the 1986 and 1988 Consents approved plans were only intended to illustrate the area of the existing core works and the same area for future works (whether core or non-core). Consequently, they did not show the location of the two existing dams.

68. In my opinion, and as is common ground, the 1986 Consent approved the actual orientation/location of the existing core works, not their different orientation/location shown on the approved plan. In order to reach that conclusion, it is necessary to say that the 1986 Consent approved at least that part of the existing operation on the ground. It did so even though the actual orientation/location of the core works conflicted with the orientation/location shown on the approved plans. The existing operation on the ground included the two incidental or ancillary dams. Since they were not core works, they were not shown on the approved plan, which was only intended to be referable to the core works. In the unusual context, the expression “generally in accordance with” in condition 3 indicates tolerance of the existence of the two dams outside the area depicted on the approved plan. Thus, in my opinion, the 1986 Consent approved the two existing dams.

69. If there is any lack of clarity or ambiguity as to whether the 1986 Consent approved the existing operation on the ground, the conclusion that it did is fortified by reference to the applicant’s letter forming part of the approved development application. The impression it conveys is that approval was being sought for the whole of the existing operation even though it did not refer specifically to the two existing dams, which is understandable since (as I have held) they were ancillary or incidental to the core operation.

70. If I am in error, then, in the exercise of the Court’s discretion, I would accede to ANL’s submission and decline to grant relief in relation to those two dams given their existence to Council’s knowledge at the time of the 1986 Consent and for over 30 years since without objection (to say the least) by Council or anyone else, their nature as common rural dams, and their useful functions.

71. I turn to the leachate dam, bund and woodchip stockpile area. ANL submits that they are ancillary or incidental to ANL’s compost business and, as such, incidental to the approval in the 1986 and 1988 Consents. I accept the premise and reject the conclusion. The mere fact that they are ancillary or incidental to the composting business does not, of itself, support the conclusion that they are authorised by the 1986 and 1988 Consents. Whether they are authorised by those Consents depends upon the terms of the Consents. In my opinion, they are not authorised by the terms of the 1986 and 1988 Consents. In the first place, they were constructed by ANL about 15 years after the 1986 Consent and lie outside the spatial limits of the development approved by the 1986 and 1988 Consents, on any reasonable interpretation of those limits. Secondly, they required clearing of the “natural bush” designated in the 1988 Consent within the designated setback from Deaves Road and Crawford Road in the 1988 Consent. There is nothing to indicate that future development in that location, requiring clearing of natural bush, was contemplated by either Consent. Thirdly, even if the leachate dam and bund were within the approved spatial limits under the 1986 and 1988 Consents, their nature and extent are so great that they could not be ignored for planning purposes and would require development consent: cf Baulkham Hills Shire Council v O’Donnell (1990) 69 LGRA 404 at 409 (NSWCA).

72. In oral evidence, Ms Laidlaw ultimately appeared to confirm her written evidence that the leachate dam required and did not have development consent. Logically, this conclusion would extend to the bund. In oral evidence, she also appeared to confirm her written evidence that the woodchip stockpile area required and did not have development consent.

73. I conclude that the leachate dam, bund and woodchip stockpile area required and do not have development consent.

74. ANL submits that, in the discretion of the Court, no relief should be granted because: (a) the leachate dam and bund (although not the woodchip area) lie within the cleared area ultimately established by Renshaw whose clearing Council did not object to; (b) in 2001 Council officers informed the EPA and councillors that Council approved the current size of the cleared area, bund and leachate dam (above at [28]-[31]); (c) the EPA relied on that approval to issue a licence to ANL and ANL relied on the licence to conduct its composting operations; (d) ANL constructed the bund and leachate dam with the object of conducting operations in a more environmentally responsible manner than hitherto; (e) these works are ancillary or incidental to ANL’s business; (f) they have been in situ for 15 years; and (g) ANL rehabilitated the Land by removing noxious weeds and planting.

75. As a general principle, I do not consider that the past errors of a former officer of a council in representing that works had been authorised by a development consent when in fact they had not been, should restrict a council from seeking to enforce the law in that respect. Otherwise, I take the matters put by ANL into account. However, I conclude not that there should be no relief granted in relation to the leachate dam, bund and woodchip stockpile, but that the injunctions I propose to grant should be stayed for a period that should suffice for ANL to endeavour to regularise the situation, such as by seeking development consent for the use of those works.

PLANNING CLAIM: HOURS OF OPERATION OF MECHANICAL EQUIPMENT

77. Council claims that, in contravention of s 76A of the EPA Act, ANL has breached the hours of the operation of mechanical equipment permitted by condition 5 of the 1988 Consent, which superseded condition 6 of the 1986 Consent. The only issue on liability is whether “mechanical equipment” includes trucks.

78. It is convenient to repeat condition 5 of the 1988 Consent:

5.   Hours of operation of mechanical equipment are to be restricted to between 7.00am and 8.00pm on weekdays and 8.00am to 8.00pm weekends.

And to repeat condition 6 of the 1986 Consent:

6.   That the hours of operation of mechanical equipment be limited to between 7.00am and 8.00pm on any day.

79. Condition 5 of the 1988 Consent reduced by one hour – from 7am to 8am – the permissible weekend hours of operation of mechanical equipment imposed by condition 6 of the 1986 Consent. The planning experts agreed that condition 5 of the 1988 Consent only applied to operation of mechanical equipment in the western shed. However, the parties disagree with the planners, and so do I.

80. The evidence concerning trucks of Mr Clarke, a neighbour, and in numerous complaints to Council concerning trucks and other mechanical equipment satisfies me that from 2009 onwards, trucks and other mechanical equipment on the Land have frequently operated well outside the hours specified in both conditions, including trucks operating on Land at hours such as 2am, 4am and 6am.

81. Council contends that the expression “mechanical equipment” in the condition includes trucks. ANL contends that it does not. ANL submits that a construction of “mechanical equipment” to include trucks would give rise to material uncertainty in the operation of the Consents and, potentially, absurdity because it would preclude ANL from using any of its trucks on roads beyond Crawford Road on Deaves Road outside the hours specified in the conditions. I reject that submission. The condition is only concerned with the operation of mechanical equipment on the Land.

82. In my opinion, in this context the expression “mechanical equipment” includes trucks. First, the expression “mechanical equipment” in ordinary understanding is, in my view, wide enough to include motor vehicles used in a business. Secondly, to construe the expression as excluding trucks but including other mobile plant, such as excavators used to turn the compost piles, would not achieve a practical result and would pay little or no regard to the context. Thirdly, although authority as to whether the phrase “mechanical equipment” includes motor vehicles is sparse, it tends to favour the conclusion that it does, and no contrary authority has been cited. There are several VCAT merit decisions: Gray v Greater Bendigo City Council [2000] VCAT 1704 at [31] (motor vehicles described as within a class of mechanical equipment to which an acoustic standard applies); Pace Developments v Port Phillip City Council [2012] VCAT 1277 at [6] of appendix A (condition imposed for a construction management plan dealing with noise from “mechanical equipment, including idling trucks”); Cheers v Casey City Council [2006] VCAT 2317 at [5] (condition imposed that refers to “front end loaders, trucks and other mechanical equipment”). There is also a personal injury case: Joe El-Tarraf v Franklins Ltd [2001] NSWSC 407 at [2] where Newman AJ said that the plaintiff “utilised mechanical equipment such as forklift trucks”.

83. ANL submits that, in the exercise of its discretion, the Court should not grant relief in respect of trucks because Council was well aware of the movement of ANL trucks along Crawford Road and Deaves Road. I do not regard this as a weighty consideration. The object of the condition concerning hours of operation of mechanical equipment is largely to protect the amenity of neighbours. The evidence indicates that neighbours have suffered as a result of ANL trucks operating outside the permitted hours. I propose to grant injunctive relief.

NATIVE VEGETATION CLAIM

84. Council claims that between 2006 and 2014 ANL cleared native vegetation without the requisite development consent in breach of s 12 of the NV Act. Council pleaded that the unlawful clearing was in the area shown in red on the Works Plan (annexure “H” hereto). At trial, Council restricted the claim to three polygon areas of 0.31 hectares, 0.027 hectares and 0.120 hectares adjacent to the access road marked on the aerial photograph in annexure “D” hereto.

85. Section 12 of the NV Act provides:

12 Clearing requiring approval

(1)   Native vegetation must not be cleared except in accordance with:

(a)   a development consent granted in accordance with this Act, or

(b)   a property vegetation plan.

(2)   A person who carries out or authorises the carrying out of clearing in contravention of this section is guilty of an offence and is liable to the maximum penalty provided for under section 126 of the EPA Act for a contravention of that Act.

(3)   It is a defence in any proceedings for an offence against this section if it is established that the clearing was permitted under Division 2 or 3 or was excluded from this Act by Division 4.

Note. An offence against this section committed by a corporation is an executive liability offence attracting executive liability for a director or other person involved in the management of the corporation—see section 45.

86. This requirement for development consent (or a property vegetation plan) is subject to the exemptions in s 19(1), which permits clearing of “regrowth but not protected regrowth” without development consent. Section 19(1) provides:

Clearing of native vegetation that is only regrowth, but not protected regrowth, is permitted.

87. There is no suggestion that the alleged clearing falls within any statutory defence or exemption.

88. Expert evidence as to change in the extent of vegetation on the Land was given by ecologists Mr Travis Peake for Council and Mr Nicholas Skelton for ANL and by a surveyor, Mr Bernard Moriarty, for Council.

87. After considering the aerial photographs and the other evidence, particularly the expert evidence of the ecologists, I am satisfied that:

1. ANL cleared most of the 0.031 area between April and July 2014, albeit there had been some thinning of at least the understory at some time before October 2001. I am prepared to accept that a small part of this 0.031 hectares area was cleared prior to ANL’s occupation of the Land. Contrary to ANL’s submission, I am not satisfied that any part of the 0.031 area corresponds with the area approved for carparking in the 1988 Consent layout plan, although it is proximate to it;

2. ANL cleared the other two areas of 0.120 hectares and 0.027 hectares some time after February 2006. A cleared track from an earlier time ran between them. The area of 0.120 hectares corresponds with the majority of the woodchip stockpile area.

90. Consequently, in my opinion, ANL breached the NV Act.

91. ANL does not submit to the contrary but submits that the Court, in the exercise of its discretion, should decline to grant relief because:

1. the clearing of those three areas was minimal and, in the context of the clearing carried out on Land prior to ANL’s occupation, relatively negligible;

2. the clearing involved the removal of vegetation from an area that was more or less already surrounded by cleared land; and

3. part of the 0.031 hectares had already been cleared prior to ANL’s occupation.

92. I accept that ANL’s unlawful clearing was relatively small compared with the clearing carried out prior to its occupation of the Land, that the clearing ANL carried out is adjacent to or more or less surrounded by previously cleared land, and that a small part of the 0.031 hectares area had been previously cleared. However, I do not consider that these matters are sufficiently weighty as to incline the Court against granting any relief. ANL could have carried out the clearing lawfully by obtaining development consent. It did not seek to do so and no explanation has been provided for its failure.

OFFENSIVE ODOUR CLAIM

93. Council claims that ANL has caused or permitted the emission of offensive odour from the Land, in breach of s 129 of the POEO Act.

94. Section 129 provides;

129 Emission of odours from premises licensed for scheduled activities

(1)   The occupier of any premises at which scheduled activities are carried on under the authority conferred by a licence must not cause or permit the emission of any offensive odour from the premises to which the licence applies.

(2)   It is a defence in proceedings against a person for an offence against this section if the person establishes that:

(a)   the emission is identified in the relevant environment protection licence as a potentially offensive odour and the odour was emitted in accordance with the conditions of the licence directed at minimising the odour, or

(b)   the only persons affected by the odour were persons engaged in the management or operation of the premises.

(3)   A person who contravenes this section is guilty of an offence.

95. The Dictionary to the POEO Act defines “offensive odour”:

offensive odour means an odour:

(a)   that, by reason of its strength, nature, duration, character or quality, or the time at which it is emitted, or any other circumstances:

(i)   is harmful to (or is likely to be harmful to) a person who is outside the premises from which it is emitted, or

(ii)   interferes unreasonably with (or is likely to interfere unreasonably with) the comfort or repose of a person who is outside the premises from which it is emitted, or

(b)   that is of a strength, nature, duration, character or quality prescribed by the regulations or that is emitted at a time, or in other circumstances, prescribed by the regulations.

96. The defence for which s 129(2)(a) provides is inapplicable. ANL’s environment protection licence No 11324 was a licence granted under the POEO Act that confers an authority for the purposes of that Act upon ANL to conduct its operations on the Land in accordance with the terms of the licence. Clause 23.1 of the licence states that no condition of the licence identifies a potentially offensive odour for the purposes of s 129 of the POEO Act.

97. Expert evidence as to odour was given by Mr Aleks Todorovski for Council and Mr Terrence Schulz for ANL.

98. The odour experts agreed and I accept that it is “highly probable that at times the ANL developed area emissions have been the cause of offensive odour detectable off-site”.

99. The odour experts agreed that it is most likely the key problematic sources of odour at the Land are the green waste receivals area, the composting windrows and the leachate dam.

100. Mr Schulz considered that ANL’s operation “has not always operated to its full odour mitigation potential”.

101. Mr Schulz had earlier carried out an odour study in May 2013. The study was required because of a requirement imposed by the EPA on ANL’s environment protection licence. The study showed “the potential for higher odour emissions from key odour sources if developed area management is sub optimal” and, in section 8, identified options for odour mitigation.

102. Following the May 2013 study, the EPA required, by variation to ANL’s licence, that ANL by 30 September 2013 provide to the EPA an odour mitigation and management strategy prepared by a suitably qualified consultant, aimed at permanently reducing odour from the premises. It required the strategy to comprehensively detail odour mitigation and management measures on the three operational areas of the premises, namely, incoming green waste, active windrows and the leachate dam.

103. The odour management plan was prepared in December 2013. Mr Schulz considered the implementation of the plan to be sufficient to prevent, in future, offensive odours being emitted.

104. There were two measures proposed in the December 2013 odour management plan. The first measure was a system of aeration and covers. Mr Schulz’s evidence was that this system was in place and being operated. That evidence was on the basis of advice from ANL. Mr Todoroski’s evidence, from personal inspection, was that the aeration system had not operated for some time given the build-up of detritus and cobwebs in the components, including in the air intake for the aeration motors, as shown in his photographs. As his evidence was based on personal inspection, I prefer the evidence of Mr Todoroski on this point.

105. Mr Schulz gave evidence about the particular aspects of the aeration and cover system. He:

1. agreed that holes in the hoses conveying air was “less than ideal” but did not think it would have much impact on air flow;

2. agreed that holes in the covers over the compost piles were “not as good” but was not so concerned about it;

3. agreed that covers were not in place on some of them;

4. described probes for temperature and moisture monitoring as unsuccessful and not used and, further, the operation of the aeration system had been changed from an automatic one based on drop in oxygen level in the compost pile, to a manual system based purely on timers.

106. It is apparent that the aeration and cover system is not being operated to its full odour mitigation potential.

107. The second measure was a leachate management system, referred to in detail in an appendix to the December 2013 odour management plan. That system, Mr Schulz agreed, was not in place, that is, had not been installed. The system included an interceptor tank connected to two treatment tanks each of 250 cubic metres capacity to detain, store and treat leachate before being directed to the leachate dam. This is consistent with the evidence of Dr Perrens, a water management expert.

108. The fact that the tanks and other parts of the leachate management system have not been installed appears to be the result of a considered decision by ANL. This is apparent from correspondence by ANL to the EPA as recently as 16 February 2015, which included this passage:

As you are aware, ANL was poised to apply to Lake Macquarie City Council for a DA to construct the proposed storage tanks, copy attached dated 10 December 2013. ANL further attempted to negotiate a fair and equitable outcome with Lake Macquarie City Council to no avail and under legal advice ANL did not proceed with the tank farm DA.

109. On the evidence, I find that sub optimal management of the developed area that was identified in the May 2013 odour study continues to the present day, because the mitigation measures proposed in December 2013 have been implemented less than ideally (aeration and cover system) or not at all (leachate management system).

110. The high probability of continued emissions of offensive odours from the developed area before and after 2013 is borne out by the many complaints of offensive odour made consistently over time. Such complaints include descriptions of the nature and duration of odour and the effect on the persons perceiving them. The terms of the complaints leave me in no doubt that they were offensive odour because they interfered with the comfort and repose of the complainants. There is also uncontested direct evidence of offensive odour, including so as to force Mr and Mrs McGlynn on many occasions to leave their home on a neighbouring property on Deaves Road.

111. I conclude that ANL has in the past caused the emission of offensive odours from the Land in breach of s 129(1) of the POEO Act.

112. ANL submits that, in the exercise of the Court’s discretion, the Court would decline to grant relief for the breach of s 129 concerning odour because:

1. composting involves a degree of odour being emitted at particular times especially in certain weather conditions;

2. in 2009 ANL sought expert advice from and retained Mr Schulz to provide guidance in relation to odour management, since early 2013 he has been providing odour management advice, and in 2013 he prepared an odour management plan;

3. assessment of whether there is offensive odour necessarily involves a degree of subjectivity, and should be considered in the context that the Land is a predominantly rural area;

4. the Land is subject to ongoing monitoring (including in relation to odour) by the EPA with a view to ensuring compliance with regulatory requirement, including s 129(2);

5. ANL has regularly monitored the Land for odour and maintained voluminous records of its monitoring. Further, as recommended by Mr Schulz, ANL uses an aeration system to address odour issues;

6. Mr Schulz gave oral evidence that ANL has adopted “near best practice if not best practice” in the management of odour on Land. However, I observe that this was referable to the combination of the two measures he proposed in his 2013 report, one of which has not yet been implemented.

113. In light of my findings, I am not persuaded that these considerations should lead the Court to decline relief. Given that mitigation measures identified in December 2013 have not been implemented, because of ANL’s decision to not even apply for planning permission for the leachate management measures, or have been implemented in a less than ideal way, I conclude that it is probable ANL will in the future, unless restrained, cause the emission of offensive odours from the Land. However, I propose to stay an injunction relating to odour for a period to give ANL an opportunity to put effective odour management measures in place.

WATER POLLUTION/NEGLIGENCE CLAIMS

114. Council pleaded that:

1. in breach of s 120 of the POEO Act, ANL has polluted water by causing or permitting pollution, namely organic nutrients, to leak from the leachate dam and bunds into the downstream environment, including to a creek;

2. in breach of s 116 of the POEO Act, ANL has negligently caused organic nutrients to leak, spill or otherwise escape in a manner that harms or is likely to harm the environment.

115. Expert evidence was given by water management experts Mr Peter Jamieson for Council and Dr Stephen Perrens for ANL.

Water pollution: s 120 POEO Act

116. Section 120 provides:

120 Prohibition of pollution of waters

(1)   A person who pollutes any waters is guilty of an offence.

Note. An offence against subsection (1) committed by a corporation is an offence attracting special executive liability for a director or other person involved in the management of the corporation—see section 169.

(2)   In this section:

pollute waters includes cause or permit any waters to be polluted.

117. The Dictionary to the POEO Act includes the following definitions:

water pollution or pollution of waters means:

(a)   placing in or on, or otherwise introducing into or onto, waters (whether through an act or omission) any matter, whether solid, liquid or gaseous, so that the physical, chemical or biological condition of the waters is changed, or

(b)   placing in or on, or otherwise introducing into or onto, the waters (whether through an act or omission) any refuse, litter, debris or other matter, whether solid or liquid or gaseous, so that the change in the condition of the waters or the refuse, litter, debris or other matter, either alone or together with any other refuse, litter, debris or matter present in the waters makes, or is likely to make, the waters unclean, noxious, poisonous or impure, detrimental to the health, safety, welfare or property of persons, undrinkable for farm animals, poisonous or harmful to aquatic life, animals, birds or fish in or around the waters or unsuitable for use in irrigation, or obstructs or interferes with, or is likely to obstruct or interfere with persons in the exercise or enjoyment of any right in relation to the waters, or

(c)   placing in or on, or otherwise introducing into or onto, the waters (whether through an act or omission) any matter, whether solid, liquid or gaseous, that is of a prescribed nature, description or class or that does not comply with any standard prescribed in respect of that matter,

and, without affecting the generality of the foregoing, includes:

(d)   placing any matter (whether solid, liquid or gaseous) in a position where:

(i)   it falls, descends, is washed, is blown or percolates, or

(ii)   it is likely to fall, descend, be washed, be blown or percolate,

into any waters, onto the dry bed of any waters, or into any drain, channel or gutter used or designed to receive or pass rainwater, floodwater or any water that is not polluted, or

(e)   placing any such matter on the dry bed of any waters, or in any drain, channel or gutter used or designed to receive or pass rainwater, floodwater or any water that is not polluted,

if the matter would, had it been placed in any waters, have polluted or have been likely to pollute those waters.

waters means the whole or any part of:

(a)   any river, stream, lake, lagoon, swamp, wetlands, unconfined surface water, natural or artificial watercourse, dam or tidal waters (including the sea), or

(b)   any water stored in artificial works, any water in water mains, water pipes or water channels, or any underground or artesian water.

118. Council submits that there are two classes of breaches of s 120:

1. two past breaches about which there is direct evidence;

2. past and apprehended future breaches about which there is some direct evidence and also other evidence, on which the Court is asked to make inferential findings. In this class Council invites the Court to find that there have been, and will continue to be, intermittently occurring periods of rainfall for which there is insufficient surcharge capacity to avoid overflow from the leachate dam, or other discharge from the developed area such as pumping from the leachate dam to the clean water dam and overflow from the clean water dam.

119. Discharges of water containing leachate from the composting operation would cause pollution in the statutory sense because the nutrients from the composting operation would cause biological or chemical changes to the receiving waters.

Two past breaches of s 120 (direct evidence)

120. The first breach occurred on or about 24 October 2004 when ANL pumped water from the leachate dam to the clean water dam. This discharged from the clean water dam from its spillway towards Deaves Road into a drainage line, which flows downstream in a north-easterly direction around the western side of the leachate dam and to the northern boundary of the Land. In this way, the water in the clean water dam and the water of the drainage line were polluted. This was a breach of s 120. The EPA issued a penalty notice for the breach. Operational procedures were amended with the object of ensuring that no water from the leachate dam is pumped to the clean water dam.

121. ANL admits the breach but submits that the Court should decline to give declaratory or other relief for the breach because (among other things):

1. a declaration of or breach of a provision such as s 120 is a declaration that ANL has committed a criminal offence, which would not be appropriate in the circumstances of this case: Great Lakes Council v Lani [2007] NSWLEC 681, 158 LGERA 1 per Preston CJ of LEC; Baulkham Hills Shire Council v Ko-veda Holiday Park Estate Ltd [2009] NSWCA 160, 167 LGERA 395 at [135]-[137] per Young JA (the other members of the Court of Appeal agreeing);

2. the breach occurred more than a decade ago;

3. the EPA issued a penalty notice for the breach and relief would amount to further punishment and, in the circumstances, be unfair.

122. I consider at [201] (and following) below the cases referred to in [121(a)] above. Having regard to other matters put above, I am persuaded that no relief should be granted based on the 2004 breach alone.

123. Council submits that the second alleged past breach of s 120 for which there is direct evidence is causing or permitting leachate from the woodchip stockpile area to drain to the north-east of that area. Although this might be thought to fall outside the s 120 pleading, it was treated as an issue at trial and was the subject of evidence and submissions and no pleading objection was taken.

124. ANL submits that the Court should not find this alleged breach of s 120 because:

Council has not established that any runoff from the woodchip stockpile area is leachate.

1. The parties’ water management experts, Mr Jamieson and Dr Perrens, agreed in their first joint report that the areas draining to the leachate dam include significant areas in (inter alia) the woodchip stockpile area that have significantly lowered pollution potential than the area used for active composting, compost maturation and stockpiling of mature compost; and Dr Perrens said there was no significant source of phosphorous from the woodchip stockpile area.

2. The soil samples taken by Mr Jamieson at soil sampling location 2 (marked on annexure “I” hereto) do not establish that the runoff from the woodchip stockpile area has resulted in pollution.

125. Council’s water management expert Mr Jamieson observed the alleged event occurring during his inspection on 7 July 2013 and took photographs. The leachate was flowing in the direction of his soil sampling location 2. Dr Perrens gave evidence that there were overland flows leading to soil sample locations 2 and 3. Such flows were “water” within the meaning of s 120. The woodchip stockpile area has been in use since at least February 2010. Leachate would have flowed unimpeded from that area until concrete blocks were placed on its north-eastern edge between July 2013 and July 2014. The water management experts agreed in oral evidence that the concrete blocks would have diverted the majority (not all) of the flow from the north-eastern area towards the leachate dam. On the evidence, I conclude that there has been water pollution from the woodchip stockpile area in breach of s 120.

126. Any relief in this regard may be moulded with an eye to giving ANL the opportunity to divert leachate completely from the north-east towards the leachate dam.

Further past and apprehended future breaches of s 120

127. Council submits that the Court should conclude, on the balance of probabilities, that there have been past breaches, and will be future breaches, of s 120 during periods of sustained rainfall because the surcharge capacity of the leachate dam is insufficient to avoid overflow from the leachate dam and/or overflow from the clean water dam from water pumped from the leachate dam into the clean water dam.

139   There is usually no objection to a declaration of such a particular fact even though its establishment might also be an element in a criminal offence.

204. In Lani, Preston CJ of LEC said:

19.   Whilst the Court would have jurisdiction to make declarations that the respondents have breached the planning or environmental statutes in question in this case, I have determined, as a matter of discretion, that declarations would not be appropriate in the circumstances of this case.

20.   First, the making of a declaration by itself would not have any practical effect in the circumstances of this case. A declaration that a breach of a statute has occurred does not have any constitutive effect – it does not bring about any change in the rights or duties of the parties.

21.   Secondly, declarations of breach of the statutes are not necessary in order for the Court to have jurisdiction to make other orders including the injunctive orders to remedy or restrain breaches of the statute. The Court can make the injunctive orders agreed to by the parties and found by the Court to be appropriate without first making declarations that the respondents have breached the statutes. The situation in this case is to be contrasted to the regime under the Corporations Act 2001 (Cth), considered in Australian Securities and Investments Commission v Rich (2004) 50 ACSR 500, where the Court can only make consequential orders of a pecuniary penalty order or a disqualification order once a declaration of breach of the statute has been made under s 1317E of the Corporations Act.

22.   Thirdly, a declaration of breach of a statute by itself neither remedies past breaches of the statute nor restrains any future breaches of the statute. Only the injunctive orders, agreed to by the parties and found by the Court to be appropriate to be made, will achieve the consequences of remedying the past breaches and restraining future breaches of the statutes.

23.   Fourthly, care must be taken not to use a declaration of breach of a statute in civil enforcement proceedings as a substitute for a criminal prosecution. It is not appropriate for the Court in the exercising of its civil enforcement jurisdiction to punish wrong-doers under the guise of remedying a breach: Liverpool City Council v Roads and Traffıc Authority (No 1) (1991) 74 LGRA 265 at 280. A declaration of breach of a statute in civil enforcement proceedings is not to be equated with the entry of a conviction upon a finding of guilt in a criminal prosecution. The latter does have an effect on the person, including by creating a criminal record for the person, which may have external consequences for that person. A declaration of breach of a statute in civil enforcement proceedings does not have such consequences.

24.   The Council could have brought criminal prosecutions in respect of each breach of the statutes but elected not to do so. The reasons why the Council undertook this course are perfectly understandable and related to the greater range of remedial relief available in civil enforcement proceedings compared to that available in criminal prosecutions and to the lower standard of proof in civil enforcement proceedings compared to criminal prosecutions. Nevertheless, that election to bring civil enforcement proceedings having been made, the civil enforcement proceedings should not be now used as a substitute for criminal prosecutions.

25.   I accept that a legitimate purpose of civil enforcement proceedings is for there to be a finding by the Court and through its judgment a public pronouncement that a breach of the law has occurred by the respondents. However, this effect can be achieved by the Court making findings in the judgment of the Court, which, of course, is a public document. The Court’s judgment will suffice to publicly expose and denounce on behalf of the community the unlawful behaviour in which the respondents have engaged. I have set out above in full each of the findings of the Court, including those that have been admitted in the points of claim, together with the consequences that flow from those findings as to the breaches of each of the statutes. This public pronouncement in the judgment suffices to achieve the purpose of public exposure and denouncement of the unlawful conduct of the respondents.

205. Those observations in Ko-veda should be considered in light of other high authority and many cases before and since in which declarations of breach have been made which could have been the subject of criminal proceedings where the criminal offence consisted of a breach of a regulatory provision such as failure to comply with a planning or environmental law. In X v Australian Prudential Regulation Authority [2007] HCA 4, 226 CLR 630 at [17] Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ quoted approvingly from the judgment of Gibbs CJ in Sankey v Whitlam [1978] HCA 43, 142 CLR 1 at 21:

Most of the cases in which declarations have been made in matters which could have been, or were, the subject of criminal proceedings were cases where the criminal offence consisted of a breach of a regulatory provision, such as a failure to comply with an administrative requirement, a planning provision or a by-law.

and at 25:

The power to make declaratory orders has proved to be a valuable addition to the armoury of the law. The procedure involved is simple and free from technicalities; properly used in an appropriate case the use of the power enables the salient issue to be determined with the least possible delay and expense. But the procedure is open to abuse, particularly in criminal cases, and if wrongly used can cause the very evils it is designed to avoid.

206. Similarly, P W Young QC (as his Honour then was), Declaratory Orders (Butterworths, 2nd ed, 1984) at [1704] stated that: “The decided cases show that the vast majority of situations which have been considered proper cases for declaratory relief are in the category of regulatory offences and a great number of these cases are in the area of offences against local government and town planning laws. Instances include [a number of English cases were cited]”.

207. Where an actual or threatened breach of the EPA Act, POEO Act or NV Act has been established, the Court is given an extremely wide charter to determine what, if any, relief should be granted and to mould the manner of its intervention in such a way as will best meet the practicabilities as well as the justice of the situation before it: FHannan Pty Ltd v Electricity Commission of New South Wales [No 3] [1985] 66 LGRA 306 at 311 per Street CJ. In that case it was recounted that in previous litigation a declaration had been sought (inter alia) that the respondent’s purported resumption was in breach of the EPA Act. Cripps J at first instance found there was no breach, but said that if he had found there was breach he would have declared that fact: at 308. An appeal was allowed, the majority holding that the respondent was in breach of the EPA Act: at 324. In these further proceedings which reached the Court of Appeal, McHugh JA (although otherwise in dissent) observed that there was power to declare that a decision was in breach of the EPA Act: at 327.

208. In the civil enforcement case of Forestry Commission of New South Wales v Corkill (1989) 73 LGRA 247 at 256, the NSW Court of Appeal (Mahoney AP, Meagher and Handley JJA) considered that it would be appropriate for a declaration to be made that acts done to carry out proposals made by the Forestry Commission for logging and roading activities in the Chaelundi State Forest will cause the taking or killing of certain endangered species within Schedule 12 of the National Parks and Wildlife Act 1974 in breach of s 99 of that Act.

209. In the civil enforcement case of Warehouse Group (Australia) Pty Ltd v Woolworths Ltd [2003] NSWCA 270, 137 LGERA 115, the NSW Court of Appeal (Foster AJA, Mason P and Santow JA agreeing) upheld declarations made by this Court that the respondent was using a property for the purpose of a shop in breach of s 76B of the EPA Act and was using the property in breach of a condition of a development consent contrary to s 76A(1) of the EPA Act.

210. Further, before and after Ko-veda and Lani, and consistently with the decision of the Court of Appeal in Corkill and Warehouse Group, civil enforcement decisions of this Court are replete with instances in which declarations of breaches of planning and environmental legislation have been made. In Meriton Apartments Pty Ltd v Sydney Water Corporation [2004] NSWLEC 699, 138 LGERA 383 Lloyd J cited some examples:

Section 256(6) of the POEO Act states that the Court may make such orders as it thinks fit to remedy or restrain a breach. Under s 20(2) of the Court Act this Court can make a declaration of right in relation to a right, obligation or duty or the exercise of any such function arising from the POEO Act. Therefore, this Court has power to make an order declaring that a breach of the POEO Act has occurred or that a certain act that is proposed to be done will, if done, amount to a breach of that Act in the future. This Court has previously made declarations that the past conduct of a respondent in civil proceedings has involved a breach of an Act: see for example Donnelly v Solomon Islands Mining NL (2002) 121 LGERA 264 at 291; Woolworths Ltd v The Warehouse Group (Australia) Pty Ltd [No 2] [2003] NSWLEC 72 upheld in Warehouse Group (Australia) Pty Ltd v Woolworths Ltd [2003] NSWCA 270; Bankstown City Council v Le (2003) 133 LGERA 155 at 167. In Forestry Commission of NSW v Corkill (1991) 73 LGRA 247, the Court of Appeal recognised that this Court could also make a declaration that certain future conduct would be in breach of the relevant legislation. Therefore, a mere declaration is a remedy that the Court could impose.

211. This Court in civil enforcement proceedings has on a number of occasions distinguished Lani and made declarations of breaches of planning and environmental legislation. For example, in Council of the City of Sydney v Mae [2009] NSWLEC 84 after considering Lani, Sheahan J made a declaration that the respondent is or has been unlawfully using premises for the purposes of a boarding house in contravention of s 76A(1) of the EPA Act: at [29], [52].

212. Again, in Marrickville Council v Tanwar Enterprises Pty Ltd [2009] NSWLEC 127 Pepper J made a declaration that the respondents had breached s 76A(1) of the EPA Act by carrying out development on certain land, contrary to conditions of a development consent. In distinguishing Lani, her Honour was influenced by the repeated and continual nature of the breach of the conditions and considered that the declaration served a purpose as a public pronouncement that the respondents had breached the law: at [37]. In Hill Top Residents Action Group Inc v Minister Administering the Sporting Venues Authorities Act 2008 (No 4) [2011] NSWLEC 6 Pepper J made a declaration that the Minister had breached EPA Act s 75D(2). Her Honour distinguished Lani for a number of reasons: the Minister had breached the EPA Act on more than one occasion, and the second breach took place in circumstances where the Minister had notice of the need to ensure that the clearing was carried out in accordance with approved plans; the gravity of the breaches was exacerbated because at the time of the clearing the Minister knew that the land had a high conservation value; the persistent nature of the Minister’s acts suggested there was utility in publicly exposing and denouncing repeated unlawful behaviour; since the Minister made a number of concessions, finding were not fully set out by the Court and hence there was no public pronouncement through the judgment; and declarations could be seen to have a deterrent and educative element, which may be particularly important when the body against which the declaration is made is a public body: at [15]-[22]. Overall, her Honour considered that public pronouncement of the Minister’s actions through the judgment alone would not be sufficient: at [23].

213. Distinguishing his own decision in Lani, Preston CJ of LEC in Director-General, Department of Environment, Climate Change and Water v Venn [2011] NSWLEC 118 made a declaration that between certain dates Mr Venn, in breach of s 118A(2) of the National Parks and Wildlife Act 1974, picked plants of two endangered ecological communities on certain land. His Honour’s reasons for granting declaratory relief were as follows:

[279]   First, unlike in Great Lakes Council v Lani , the person in breach, Mr Venn, did not admit the breach and put in issue the critical elements of the breach. He denied that his conduct involved “picking”, that the subject of the picking were “plants”, and that any plants were part of any endangered ecological community. As I have found, these denials were in the face of overwhelming evidence establishing each of these elements of the breach. Mr Venn’s belated letter to the Court offering an undertaking not to do further work on or cause harm to or pick plants from Lot 1 was made conditional upon the Court finding that Lot 1 is part of an endangered ecological community. In the circumstances of this case, it is not sufficient for there to be merely findings in the reasons for the judgment of the Court; the ultimate findings need to be reflected in a declaration that Mr Venn’s conduct constituted a breach of s 118A(2) of the Parks Act by picking plants of the endangered ecological communities of Swamp Oak Floodplain Forest and River-Flat Eucalypt Forest.

[280] Secondly, Mr Venn’s conduct was part of, but he did not complete, his planned works of clearing and filling Lot 1. Both before and at the hearing, Mr Venn has expressed his desire to continue the planned works and to continue to use and occupy Lot 1 which would continue to cause picking of plants of the endangered ecological communities. There is a threatened or apprehended breach of s 118A(2). This continual nature of the breach makes it appropriate to make a declaration: Marrickville Council v Tanwar Enterprises Pty Ltd at [37].

[281]   Thirdly, having regard to the denial and defiance of Mr Venn in relation to picking plants of the endangered ecological communities on Lot 1 and the broader public interest in his conduct on Lot 1, it is appropriate for the Court to mark disapproval of the conduct by means of a formal declaration. In the circumstances, it is in the public interest that a declaration of breach be made by the Court to, “publicly expose and denounce on behalf of the community the unlawful behaviour” in which Mr Venn has engaged: Australian Securities and Investment Commission (ASIC) v Atlantic 3 Financial (Aust) Pty Ltd [2006] QSC 132 at [52]. As Pepper J said in Hill Top Resident Action Group Inc v Minister Administering the Sporting Venues Authorities Act 2008 (No 4) at [20];

the making of the declarations marks the disapproval of the Court of conduct that Parliament has proscribed. It also serves to discourage others from acting in a similar way and may, therefore, be seen to have a deterrent and educative element. The granting of the declaration may accordingly be seen as advancing the regulatory objects of the EPAA (s 5 of the EPAA and HumaneSociety v Kyodo Senpaku [2006] FCAFC 116; (2006) 154 FCR 425 at [22]–[27]).

[282]   Similarly, in Winn v Director-General of National Parks and Wildlife [2001] NSWCA 17; (2001) 130 LGERA 508 at [308] Stein JA, in determining that declarations should be made that mining activities causing environmental harm were in breach of relevant statutes, said that:

There is a demonstrable purpose in making the declarations. They serve to declare the law and underline the breaches. They have utility and draw attention to the continuing environmental harm to the aquifer.

[283]   The last comment is equally applicable to the regulatory objects of the Parks Act in this case.

214. In Blue Mountains Conservation Society Inc v Delta Electricity (No 3) [2011] NSWLEC 145, 81 NSWLR 407, Pepper J declined to strike out a prayer of the summons seeking a declaration that the respondent had polluted certain waters in contravention of s 120 of the POEO Act. Distinguishing Lani, her Honour said that the question of determining whether a declaration is appropriate should only be made after findings of fact based on evidence before the Court at the final hearing are made. As this process had not yet taken place, it was premature to make any pronouncement on the utility of making a declaration: at [70].

215. Mention may also be made of In the matter of Idylic Solutions Pty Ltd – Australian Securities and Investments Commission v Hobbs [2013] NSWSC 106. That was a civil penalty proceeding for contravention of a number of provisions of the Corporations Act 2001 (Cth). Ward JA made a number of declarations that defendants had “contravened” various provisions of the Corporations Act by engaging in certain conduct (the declarations are set out in a schedule to the judgment). In the case of at least two of those provisions, ss 911A and 1041E, contravention was also an offence; and they were provisions where the court was not obliged to make a declaration under s 1317E of the Corporations Act and hence the declarations relating to them were made in the discretion of the Court. Criminal proceedings could be started thereafter: s 1317P.

216. It is respectfully suggested that the obiter dicta of Young JA in Ko-veda at [137]-[138] (quoted above) in relation to a prayer for a declaration that the respondent has breached a planning statute by certain conduct, does not sit comfortably with the appellate and other authorities and the proposition in his Honour’s textbook to which I have referred. It would be wrong in civil proceedings to make a finding, let alone a declaration, that the respondent is “guilty” of an “offence” against planning or environmental legislation. However, the authorities that I have reviewed demonstrate that there is no vice in such civil proceedings in declaring, subject to the usual discretionary considerations, that the respondent has breached such legislation.

217. Where other relief such as an injunction is sought and granted, it may be unnecessary to couple it with a declaration, particularly if the applicant is indifferent to whether or not a declaration is also made or does not seek or press for the additional remedy of a declaration. But where remedies other than a declaration are inapplicable or inadequate to redress a serious breach of environmental or planning legislation, it would generally be regrettable, I suggest, if the applicant had to leave court without a remedy save for a costs order in establishing a rather barren victory. This echoes the view taken by the High Court in a different context in Ainsworth v Criminal Justice Commission [1992] HCA 10, 175 CLR 564 where the subject matter of the litigation contained a criminal element. A declaration was made that in reporting adversely to the appellants in a report, the Commission failed to observe the requirements of procedural fairness: at 597. The declaration was made because other legal remedies were inapplicable or inadequate to address the breach of the rules of procedural fairness: at 581-582, 597.

218. ANL also submits that although the standard of proof is the balance of probabilities, the Court would take into account the gravity of the matters alleged before making a declaration: s 140(2)(c) Evidence Act 1995. Section 140(2) indicates how the civil standard of proof operates, reflecting the discussion in Briginshaw v Bringinshaw [1938] HCA 34, 60 CLR 336 at 361-363. I take it into account. However, it does not in my view have further application in relation to whether or not a declaration should be made.

Injunctions

219. Some of the injunctions proposed by Council are couched in general terms to the effect that ANL obey the law. For example, injunctions restraining ANL from clearing any native vegetation on the Land unless and until development consent has been obtained and is in force that permits such clearing, and from causing or permitting the pollution of any waters by reason of ANL’s use of the Land unless and until such pollution is authorised by an environment protection licence. Future clearing or water pollution in breach of those proposed injunctions may not relate to events or circumstances raised in the present trial and would add legal consequences of contempt.

219. In the context of consumer protection legislation, the Federal Court has held that an injunction will not be granted simply to restrain a respondent from breaching the relevant Act: Australian Competition and Consumer Commission v 4WD Systems Pty Ltd [2003] FCA 850, 200 ALR 491 at [213]. In that case, Selway J stated that an injunction in those terms would be an inappropriate use of the court’s powers to add the legal consequences of contempt to the existing legislative scheme. In Australian Competition and Consumer Commission v Dataline.Net.Au Pty Ltd [2007] FCAFC 146, 161 FCR 513 at [110], the Full Court said:

We are inclined to think that in general, a court order requiring a person to conduct themselves in a particular way when a statute requires that conduct in any event, will add little to the statutory prescription or proscription and the statutory sanctions attending non-compliance. We accept that such an order may add the possibility of imprisonment for contempt where the relevant contravention would not otherwise lead to that consequence. However, if Parliament has not provided for imprisonment in connection with a contravention, it may not be appropriate for a court to enjoin such conduct simply in order to create the possibility of imprisonment. While Parliament has provided for an injunction as a possible remedy, it may be doubted that it intended that an injunction would be a remedy granted in the ordinary course in the face of the statutory sanctions Parliament has itself provided. Moreover, a Court has an interest in maintaining the efficacy of injunctive relief which requires that orders be respected. They will only be respected if they consistently serve a useful purpose and if breaches are discovered and punished. It may also be doubted that a court order requiring conduct which a statute otherwise requires will be seen to have some greater or different significance to the statutory requirement.

221. There must be a nexus between the contraventions in the proceedings and the injunction granted: Australian Competition and Consumer Commission v Z-Tek Computer Pty Ltd (1997) 78 FCR 197. An injunction must not be granted unless it will serve a legitimate purpose: Australian Competition and Consumer Commission v TPG Internet Pty Ltd (No 2) [2012] FCA 629, [2012] ATPR 42-402 at [20].

Conclusion

222. I will hear the parties as to the appropriate form of relief. My preliminary view is that appropriate injunctions can probably be formulated arising from the unlawful conduct that I have found, with the exception of the clearing of native vegetation, and that they should not be coupled with declarations. In the case of the clearing of native vegetation, it is difficult to conceive of any appropriate injunctive relief, no other relief has been proposed, relief of some sort seems appropriate, and the only candidate appears to be declaratory relief.

223. As discussed earlier, some of the injunctions proposed by Council are couched in terms of great generality that, in effect, ANL obey the law. Thus, Council proposes that ANL be restrained from clearing any native vegetation on the Land unless and until development consent has been obtained and is in force that permits such clearing; and that it be restrained from causing or permitting the pollution of any waters by reason of its use of the Land unless and until such pollution is authorised by an environment protection licence. Subject to hearing the parties, I am disinclined to grant injunctions in such general terms. If they were to be granted, then as long as ANL is operating on the Land, it would have the threat of contempt proceedings hanging over it for an indefinite period, even in relation to unlawful future acts of clearing or pollution that do not relate to events or circumstances raised in these hearings. A more specific injunction can probably be moulded and may be sufficient in respect of the water pollution. A declaration of breach in the case of the native vegetation clearing may be sufficient relief.

224. Council also proposed an injunction in general terms that the respondent be restrained from emitting any offensive odour from the Land unless and until such emission is authorised by an environment protection licence. Subject to hearing the parties, I do not have the same disinclination against making this injunction. It seems to me to have a direct nexus to the offensive odour emissions that I have found arising from the composting operations, which appear to arise from ANL’s failure to implement well or at all odour mitigation measures proposed by its expert.

ORDERS

225. I have upheld the majority of Council’s claims and will hear the parties within 7 days as to the form of relief. Subject to hearing the parties, I propose the following orders:

1. Order that the respondent, by itself, its servants, agents and contractors, be restrained from using on Lot 84 DP 9632 at 60 Crawford Road, Cooranbong (the Land):

1. the bund coloured pink on annexure A;

2. the three (3) dams coloured blue on annexure B; and

3. the area coloured green on annexure C,

4. unless and until development consent has been obtained and is in force to permit such use.

2. Order that the respondent, by itself, its servants, agents and contractors, be restrained from using mechanical equipment (including trucks) on the Land other than in accordance with condition 5 of development consent No 88/0269 dated 5 July 1988, which provides:

Hours of operation of mechanical equipment are to be restricted to between 7.00am and 8.00pm on weekdays and 8.00am to 8.00pm weekends.

3. Order that the respondent, by itself, its servants agents and contractors, be restrained from emitting any offensive odour from the Land unless and until such emission is authorised by an environment protection licence.

4. Declaration that the respondent has cleared native vegetation on the Land in the areas of 0.120, 0.027 and 0.031 hectares marked on annexure D, in contravention of s 129 of the Protection of the Environment Operations Act 1997.

5. Order that the respondent, by itself, its servants, agents and contractors, provide sufficient surcharge capacity in the leachate dam to contain runoff from at least a 1 in 10 year 24 hour rainfall event. This design volume is to be calculated on the basis of a rainfall of 168 millimetres, a contributing catchment area of 5.3 hectares and a runoff coefficient that the applicant reasonably determines based on detailed accounting, which the respondent is to carry out, of –

• rainfall

• water level in the leachate dam using at a minimum a gauge board that is read daily

• volume of water used on the compost windrows

• volume of water used for dust suppression

• volume of water tankered or transported of-site

• any changes in the contributing catchment area

6. Order that in the interim the respondent, by itself, its servants agents and contractors, is to ensure that the normal operating level of the leachate dam is maintained at less than 7 metres AHD (approximately) as per Plan 32154 R1 prepared by Daly Smith Pty Ltd dated 27 January 2015.

7. Order that the respondent divert all leachate from the woodchip stockpiled area coloured green on annexure C so that it flows towards the leachate dam.

8. Orders 1, 3, 5 and 7 are stayed until 1 July 2016.

9. Liberty to apply within seven days for orders for remediation of the Land.

10. Order that the respondent pay the applicant’s costs of the proceedings.

226. The exhibits, Court Book and legislative bundle are to be returned.

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ANNEXURES

“A”	Plan showing the bund in pink.
“B”	Plan showing in blue the leachate dam (marked “Dam D1”), the clean water dam (marked “Dam C1”) and the Crawford Road dam.
“C”	Plan showing in green the woodchip stockpile area.
“D”	Aerial photograph on which are marked three polygons adjacent to the Land’s entrance road that ANL cleared of native vegetation, with areas of 0.031 hectares, 0.027 hectares and 0.120 hectares.
“E	Aerial photograph depicting the site activity zones on the Land of ANL’s composting operation.
“F”	The layout plan approved in the 1986 Consent.
“G”	The layout plan approved in the 1988 Consent.
“H”	The “Works Plan” annexed to the Summons, being an overlay survey depicting in black the spatial extent and general layout of the existing works and in red the 100x200 metres development footprint depicted in the approved layout plans in the 1986 and 1988 Consents.
“I”	Aerial photograph showing soil sampling locations (relevant to the water pollution claim).
“J”	Aerial photograph showing water quality sampling locations and some of the drainage lines (relevant to the water pollution claim).

ANNEXURE A -  annex A, pdf)

ANNEXURE B -   annex B, pdf)

ANNEXURE C -  annex C, pdf)

ANNEXURE D -  annex D, pdf)

ANNEXURE E -  annex E, pdf)

ANNEXURE F -  annex F. pdf)

ANNEXURE G -  annex G pdf)

ANNEXURE H -  annex H, pdf)

ANNEXURE I - annex I, pdf)

ANNEXURE J -  annex J, pdf)

Decision last updated: 20 July 2015